To appear in:
Robinson, Matthew B. (2005).  Justice Blind? Ideals and Realities of American Criminal Justice (2nd Edition).  Upper Saddle River, NJ: Prentice Hall.

  An alarming study was recently published by James S. Liebman, Jeffrey Fagan, and Valerie West. Part I of the study was titled, A Broken System: Error Rates in Capital Cases, 1973–1995. These authors undertook “the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995)” and found that capital trials end up placing people on death row who do not belong there (either because serious errors were made during their cases or because they were innocent of the crimes of which they were charged), and that it takes a long time to carry out sentences of death in the United States because of the numerous errors in the process. According to the findings of this report, “American capital sentences are so persistently and systematically fraught with error” that their reliability is seriously undermined. The authors claim that capital punishment in the United States is “collapsing under its own mistakes...a system that is wasteful and broken and needs to be addressed.”

 Here are some of the key findings of this report:

• Nationally, the overall rate of prejudicial error was 68%—that is, “courts found serious, reversible error in nearly 7 of every 10 of the thousands of capital sentences that were fully reviewed during the period”;
• Serious error was “error substantially undermining the reliability of capital verdicts”;
• “Capital trials produce so many mistakes that it takes three judicial inspections to catch them—leaving grave doubt whether we do catch them all” (emphasis in original). State courts dismissed 47% of death sentences because of errors, and a later federal review dismissed 40% of the remaining cases;
• The most common errors found in the cases were (1) egregiously incompetent defense attorneys who missed evidence of the defendant’s innocence or evidence that he or she did not deserve a death sentence and (2) suppression of evidence by police and prosecutors;
• Eighty-two percent of those whose death sentences were overturned by state courts were found to be deserving of less than a death sentence, and 7% were found to be innocent of the crimes for which they were convicted;
• Serious errors have been made in every year since the death penalty was reinstated, and more than half of all cases were found to be seriously flawed in 20 of the 23 study years;
• Serious errors are made in virtually every state that still executes people, and over 90% of these states make errors more than half of the time;
• “In most cases, death row inmates wait for years for the lengthy review procedures needed to uncover all this error. Then, their death sentences are reversed”
• “This much error, and the time needed to cure it, impose terrible costs on taxpayers, victims’ families, the judicial system, and the wrongly condemned. And it renders unattainable the finality, retribution and deterrence that are the reasons usually given for having a death penalty”;
• The death penalty ranges from 2.5 to 5 times as expensive as life imprisonment without parole. When you add the costs of posttrial reviews, executions become about 24 times as expensive as life imprisonment without parole. The death penalty is so much more expensive than life imprisonment because of the high rates of error that occur at each stage and the persistence of high error rates over time and across the nation, which mandate multiple expensive judicial inspections;
• The death penalty is rarely applied—of the 5,760 state death sentences handed down between 1973 and 1995, only 313 (5.4%) led to an execution during this time. Additionally, since 1984 when post-Furman executions began in earnest, we have executed only about 1.3% of our nation’s death row inmates each year. This makes “the retributive and deterrent credibility of the death penalty” very low; and
• Homicide rates were slightly higher in death sentencing states than in non-death-sentencing states during the study years.

 From their findings, the authors conclude that the administration of capital punishment in America is nothing less than irrational. On the basis of their research, capital punishment is also a farce. They note: “Death penalty states sentenced 22 times more defendants per 1,000 homicides than they executed. And they sentenced 26 times more defendants per 100,000 population than they executed” (p. 45). I would characterize these types of findings as bizarre. Consider this: “there is no relationship between death-sentencing and execution rates” (p. 92). It is as if death sentences really have nothing to do with justice, but more to do with politics.

 In fact, the study found a not-so-surprising relationship between politics and the death penalty—that political pressure plays a role in capital punishment. The authors explain:

In general, the more electoral pressure a state’s judges are under, the higher the state’s death-sentencing rate, but the lower the rate at which it carries out its death sentences. [This] suggests that political pressure tends to impel judges—or to create an environment in which prosecutors and jurors are impelled—to impose death sentences, but then tends to interfere with the state’s capacity to carry out the death sentences that are imposed...a desire to curry favor with voters may lead elected prosecutors and judges to cut corners in an effort to secure that premium—simultaneously causing death-sentencing rates, and error rates, to increase (p. 103).

This study uncovered a number of conditions related to error in capital cases, including politics, race, crime control and the courts. But running through all the data was a simple finding - the more a state or county sentences people to death, the more often they make mistakes. … Everything else being equal, when death sentencing increases from the lowest to the highest rate in the study, the reversal rate increases six-fold, to about 80%. The more often states and counties use the death penalty for every, say 10 or 100 homicides, the more likely it is that any death verdict they impose will later be found to be seriously flawed, and the more likely it is that the defendant who was found guilty and sentenced to die will turn out to be not guilty.

Additionally, the authors found that there are four key factors which lead to errors:

homicide risk to whites and blacks; the size of the black population; the rate at which police catch and punish criminals; and politically motivated judges … Everything else being equal, when the risk of a white person getting murdered is high relative to the risk of an African-American getting murdered, twice as many appeals are reversed than where that risk is low … when whites and other influential citizens feel threatened by homicide, they put pressure on officials to punish to punish as many criminals as severely as possible - with the result that mistakes are made, and a lot of people are initially sentenced to death who are later found to have committed a lesser crime, or no crime at all.

The more African-Americans there are in a state, the more likely it is that serious mistakes will be made in death penalty trials. This could be because of fears of crime driven by racial stereotypes and economic factors … It is disturbing that race plays a role in the outcome of death penalty cases, whatever the reasons.

 On the basis of this research, as well as that reported throughout Chapter 10, I agree. I will conclude by saying that the continued administration of the death penalty in the United States is proof that our criminal justice network fails to achieve justice. In fact, the death penalty is one practice that is a clear failure.